By Dr Leonardo Raznovich

The QP7 (2016) conference was a milestone for change in the Cayman Islands. But what is holding back legal progress in the British Overseas Territories? And why is the most powerful LGBT advocacy group in the UK, Stonewall, silent? INCISE Caribbean LGBT rights project leader Leo Raznovich comments.

The UK government is failing to secure good governance and to uphold the rule of law in its British Overseas Territories in the Caribbean with respect to preventing discrimination against LGBTI people. This is now well documented and has been previously reported here. These failures by the UK Government stand in stark contrast to:

the approach taken by the US, France and the Netherlands, each of which have extended equality and harmonised basic rights for all their LGBTI people throughout their dependent territories in the Caribbean region; and

the rights secured by the American human rights system, which since January this year requires marriage equality and unhindered official recognition of one’s gender identity in all countries where the Inter American Convention on Human Rights applies (23 countries in total) pursuant to an advisory decision of the Inter American Court of Human Rights OC 24/17 issued at the request of Costa Rica.

Furthermore, the UK’s failures constitute breaches of the European Convention on Human Rights (ECHR), which after Oliari v Italy (ECtHR, 21 July 2015) requires that all countries to which the ECHR applies provide a legal framework for same-sex couples. This legal requirement includes the British Overseas Territories to which the ECHR has been extended.

The rights of LGBTI people in the Caribbean British Overseas Territories are failing to be protected and failing to be advanced in accordance with applicable international law, directly as a result of the UK’s refusal to act, the UK’s refusal to secure good governance and the UK’s refusal to uphold the rule of law. The UK is arguably, therefore, complicit with certain of its British Overseas Territories in their illegal discrimination, oppression and segregation of LGBTI people. The UK’s preference is to support the majority rather than protect the minority from the illegal discrimination, oppression and segregation that they suffer. The UK is holding these countries back with the result that there is now a huge disparity between the rights of its LGBTI citizens in the UK vs its British LGBTI citizens in its other territories. To be clear, these territories, although largely self-governing, are part of the UK and their people are British citizens and have been extended the rights and protections afforded under the ECHR, yet the UK wilfully allows the rights and protections of these British LGBTI people to be breached. Unfortunately, notwithstanding that the British Overseas Territories in the Caribbean are geographically within the American continent (which is actively progressing LGBTI rights), they do not benefit from the American human rights system because politically they are part of the UK. The consequence: British Overseas Territory LGBTI persons are some of the least protected and most oppressed and segregated people in the Western Hemisphere.

In light of the foregoing, one would have thought that this situation would prompt an organisation such as Stonewall to effect the purpose of its existence and to seek to bring about some positive change. As will be seen below, astonishingly this seems not to be the case. In fact, Stonewall refuses to get involved notwithstanding its knowledge of these breaches of international human rights in the UK’s British Overseas Territories. I shall give two documented examples that evidence this appalling attitude of Stonewall.

Incitement to violence and sexual hatred against the LGBTI community by senior politicians of the Cayman Islands

In August 2015, senior politicians of the Cayman Islands incited violence and sexual hatred against the LGBTI community, avoiding prosecution by hiding behind parliamentary immunity privileges, by making the following statements in the local legislature:

describing homosexuality as a ‘deviant behavior’, ‘wicked and immoral’ and a ‘social and moral evil’;

threatening violence towards homosexuals; and

making remarks that equated homosexuality with bestiality and paedophilia, including suggestions that ‘crushing a baby’s skull and sucking their brains out had become a human right’. ‘MLA calls homosexuals evil’ in Cayman News Service (17 August 2015), available here.

The Rt Hon Anna Soubry MP and Helen Grant MP wrote a joint letter to Ruth Hunt, the Chief Executive of Stonewall, regarding, inter alia, the rather ‘disturbing’ (SIC) debate in the Legislative Assembly on the motion to reaffirm marriage as between a man and a woman. This letter was sent on 6 November 2015 (a copy is attached) and, to the author’s knowledge, neither Ruth Hunt nor Stonewall ever replied to it, or even condemned those remarks.

Petition to HM the Queen for the ECHR to be complied with by Her government

In September 2016, Colours Cayman, an LGBTI grassroots group of the Cayman Islands, petitioned the UK government, via the Governor of the Cayman Islands, for an Order in Council so that local legislation can be corrected and made to comply with the ECHR and its court’s judgments in order to bring about some equality to the LGBTI people of the British Overseas Territories. The UK government has refused to act regardless of its constitutional powers and its international legal obligations to do so.

Stonewall was approached again in this instance and on 25 January 2017, Alysha Khambay replied that Stonewall ‘won’t be able to do anything’ (copy of the correspondence on file with author).

The silence of Stonewall and its Chief Executive Ruth Hunt in the face of arguably criminal actions being committed by state officials in the Cayman Islands against LGBTI individual must not remain unnoticed; neither should be its decision of not assisting the British Overseas Territories people, British citizens as well, in their fight against the UK government for LGBTI equality, when the very purpose of this organisation is to fight for equality and to help protect British LGBTI people from discrimination.

Further (and ongoing) discrimination and human rights violations against British LGBTI people

During 2017, further serious violations of LGBTI rights have been taking place in Bermuda and the Cayman Islands; in brief:

The Bermuda Legislature has recently passed a Bill the effect of which is to cancel the judgment of the Supreme Court of the jurisdiction that has established that marriage in Bermuda must be available to same-sex couples (see Godwin-DeRoche v The Registrar General et al (5 May 2017)) under existing Bermudian Law. The Governor of Bermuda, who is appointed and takes instruction from the British government, has under section 35 of the Constitution of Bermuda the power to withhold assent or, at the very least, to refer the Bill to London for the British government to make a decision. We understand that the British government is not going to instruct the Governor of Bermuda to exercise any of these constitutional powers. When the bill becomes law, it will result in the withdrawal of legally established rights from a section of the Bermudian population. This would amount to legal segregation of LGBTI people, similar in kind to the legal segregation imposed by the Nazi regime on the Jewish community at the beginning of their governance in the 1930s when Jews were banned to marry after having enjoyed such a right under German civil law.

In the Cayman Islands, the Immigration Authority has rejected, in at least two different instances, one on 27 July 2017 and the other on 23 October 2017, the applications of married same-sex couples to be granted, in each case, the right to reside in the Cayman Islands as the spouse of a Caymanian. The grounds of such rejection are exceptionally concerning. The Immigration Authority decided that its own precedent set in July 2016, when it was allowed a same-sex spouse of a foreign worker to reside in the Cayman Islands as a dependant, does not extend to benefit Caymanian nationals. The practical effect of this rejection is that the Immigration Authority is deporting LGBTI Caymanians. They have no option but to live overseas, in countries where they are permitted to reside as a family unit. This may sound unconscionable, but it’s the appalling effect of the rejection, which in addition is in breach of the ECHR’s unanimous decision in Taddeucci and McCall v. Italy (ECtHR, 30 June 2016).

These serious breaches of LGBTI rights evidence more than just a failure of these British Overseas Territories to comply with the ECHR. They, along with those that took place in 2015 and 2016, which Stonewall decided to ignore, evidence an attitude of the UK with respect to its British Overseas Territories that demonstrates the UK government has no respect for human rights in its overseas territories, particularly in the Caribbean. Even though the UK has the constitutional powers and the legal duty to stop or redress these breaches, the UK chooses to do nothing with the complicity of Stonewall who also chooses to do nothing.

Stonewall has, now, once more the opportunity to show that they do in fact care for LGBTI people more than its alliance with the British Government. Is Ruth Hunt going to keep her head in the sand, or actively seek to assist Bermudian, Caymanian and other LGBTI people in the UK’s territories?

Dr Leonardo J Raznovich, Barrister
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Visiting Senior Research FellowIntersectional Centre for Inclusion and Social Justice (INCISE)
Canterbury Christ Church University
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Co-Vice Chair of the LGBTI Law Committee of the International Bar Association (IBA)